Morningside Apartments [2000] QBCCMCmr 249 (31 May 2000)

RA MeekREFERENCE: 0045-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3176
Name of Scheme:	Morningside Apartments
Address of Scheme:	464 Wynnum Road MORNINGSIDE QLD 4170

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Christopher Paul De Vine, the owner of lot 1

RA MeekI hereby order that within two (2) months of the date of this order, the body corporate committee shall obtain two quotes for the replacement of the green fence on part of the eastern boundary of the parcel, and thereafter the committee shall select the successful tenderer, and shall engage that tenderer to undertake and complete the replacement of the fence.

RA MeekI further order that within two (2) months of the date of this order, the body corporate committee shall obtain two quotes for the replacement of the missing cement caps on both sides of the driveway, and thereafter the committee shall select the successful tenderer, and shall engage that tenderer to undertake and complete the replacement of the missing cement caps.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0045-2000

“Morningside Apartments” CTS 3176

The applicant Christopher Paul De Vine, the owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

An adjudicator’s order to the secretary of the body corporate directing quotes be obtained and work carried out as described in motions 11, 14, 16, and 28, 26 of the EGM of 24^th November 1999.

To meet the cost of work a special levy be applied utilising the following formula for motions 11, 14, 16, and 28. New quotes less available balance of sinking fund = special levy.

For work involved in motion 26, funds are available in the administration fund.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The applicant has sought a number of orders relating to the minutes of the EGM held on 24 November 1999. These matters relate to maintenance and common property. In support of the application, the applicant has provided a number of photos to illustrate the points he is seeking to make.

Section 109 of the standard module provides that –

The body corporate must maintain common property in good condition including, to the extent that common property is structural in nature, in a structurally sound condition.

I note that no submission has been received from any other owner relating to this application. This is so notwithstanding that this office has been assured by the secretary, who happens to be the applicant, that as instructed a copy of the notice inviting submissions and the application were forwarded to all owners.

The first two items sought by the applicant relate to maintenance. The first arises from motion 11 which proposed that the “rotten timber fence next to the driveway entrance be replaced and painted (with) neighbour to pay half”. The vote was two yes and two no, which means that the motion failed.
The photographic evidence provided to me suggests that the fence is in need of replacement rather than repair. Several fence palings are missing, or at least detached from the fence. The photos show that the detached palings and visible parts of the cross beams are termite damaged. I agreed that the fence should be replaced and intend to order to this effect. Given that it is a boundary fence, the body corporate will need to serve proper notice on the adjoining neighbour in order to seek contribution towards the fence from such neighbour. Whether the quote includes painting of the fence is for the committee to determine. I note that the fence on the lower side is not painted, and it may be that the new fence is not painted so as to be consistent. If the committee determines that the new fence should be painted, then at least the body corporate should pay for the cost of purchasing the paint.

The second issue raised by the applicant relates to motion 14 which provides that the missing cement slab tops from the block walls on either side of the driveway be replaced and painted. The motion failed by two votes against with one in favour. I note the estimated cost is $110. For the future, the committee should note that it has power to resolve and attend to matters of maintenance with an expenditure of up to $500 (being $100 per lot by 5 lots). Again the photos show that some of the cement caps are missing, giving the driveway walls an uneven appearance. Given the anticipated cost of the repair (approximately $22 per lot) I intend to order that this also be attended to.

The applicant next refers to the location of the refuse bins on common property. There were two motions relating to this matter. The first was motion 16, submitted by the applicant, which provided that “a refuse bin standing area be constructed inside the front fence with a concrete base, a side timber fence, terraced gardens suitably landscaped to on-site standards”. These was a site plan accompanying this motion which would have left owners in no doubt or uncertainty as to the proposed refuse bin standing area. This motion was lost by two votes against with one in favour. The second motion was motion 28. That motion, also submitted by the applicant, provided that all seven refuse bins be relocated away from their present position in front of the applicant’s front door. That motion was lost by the same margin.

The applicant considers that the current location of the bins “on the driveway area in front of the entrance to my apartment” constitutes a nuisance under section 129 of the Act and in breach of certain by-laws “as there is presently no area allocated for the garbage bins”. Moreover, that the convenience of having garbage bins for the five apartments should be a shared convenience.

The applicant proposes that an enclosed bin standing area be constructed at the south west corner of the property, which he says is currently a garden tended by the owner of lot 3, Vincent Murphy. The applicant states that there is no record of this area being allocated for “private gardening use”. Mr Murphy submitted motion 35 which proposed that the body corporate purchase materials to terrace the front steps to create a platform for refuse bins and terraces for stairs and gardens. This motion was also lost with two votes for and two against.

In the circumstances, it seems to me that this body corporate simply hasn’t determined what to do in respect of a new bin standing area, or in fact an area whether one is to be constructed at all. The applicant complains that the current location constitutes a nuisance to his lot, and that the bins are a convenience to all owners, and that consequently the detriment of the bins (ie. their location) should also be equally shared. It seems to me that wherever bins are located on common property, they will affect certain lots more than others. The applicant’s proposed location is essentially the furtherest point of common property from his lot. However it then becomes relatively proximate to lots 2 and the lot directly above it.

The other point which occurs to me is that whilst the applicant has the alleged nuisance of the bins outside his front door (which he says is not shared by others) he also has the benefit of a very large exclusive use area adjacent to his lot. Lots 3, 4 and 5 have no exclusive use allocation, and the allocation for lot 2 is approximately one third the size of that enjoyed by lot 1. Surely, if detriments are to be equally shared, then logically, so should benefits attaching to a lot.

In the circumstances, I do not propose to order in terms sought by the applicant regarding the proposed bin placement area. This is a matter the body corporate will perhaps need to revisit.

The final order sought by the applicant relates to motion 26 which refers to the tree outside unit 2. The motion proposes that money be allocated for regular pruning of the tree. The motion was not carried with two votes in favour and two against. The tree is on the exclusive use area of lot 2. The general rule is that when exclusive use is granted to an owner, then the responsibility of the body corporate to maintain that part of common property is also transferred to the respective lot owner (see section 123(2)). However this rule is subject to there being no specific provision in the by-law for maintenance costs.

The by-law in question provides that the body corporate shall not be relieved of any of its duties under section 37 (of the Building Units and Group Titles Act 1980 – now section 109). The body corporate therefore remains responsible for maintenance of the exclusive use areas, and therefore must attend to pruning of trees and shrubs when required.

Whilst I am satisfied that the body corporate is responsible to prune and otherwise maintain the trees and shrubs etc located in the two exclusive use areas, there is no evidence currently before me to show that the tree in fact requires immediate pruning or lopping. Without such evidence, I consider I am not in a position to make an order, although it occurs to me that it is unclear the exact terms of the order which the applicant seeks. I do consider however that owners now have the benefit of the clarification of the question of maintenance of the exclusive use areas. n